The court then refuses to pass order for restitution of conjugal rights. It is for the court to decide whether, under the circumstances, a spouse has reasonable excuse for living separately or not. It is found that in a married life it is generally the wife who, under some compulsion, has to leave this husband and live separately.
And, generally husband files a suit for restitution of conjugal rights. The wife defends her separation from husband. Under Muslim law, a wife can take following defenses against husband’s claim for restitution of conjugal rights:
(1) False charge of adultery against wife by her husband.
(2) The wife had demanded her prompt dower which had not been paid provided no consummation has taken place.
(3) Repudiation of marriage by wife by exercising ‘option of puberty’.
(4) Renunciation of Islam by husband or husband’s using objectionable words against the Prophet.
(5) The husband has been declared out caste.
(6) Violation of a condition laid down in the marriage agreement, if any. However, such condition must be legal and must not be void.
(7) Physical or mental cruelty by husband.
It may be noted that the above-mentioned defences are only some of the instances of wife’s reasonable excuse for living separately. Under the Dissolution of Muslim Marriages Act, 1939, the scope of mental cruelty has now been widened.
Therefore, any ground which has been regarded as a ground for dissolution of marriage by wife under this Act or any such act of husband which may be regarded as ‘mental cruelty’ by husband may be a reasonable excuse for the wife to live separately.